Rep. Tom Feeney (R-Fla.), who has co-sponsored a nonbinding resolution against the use of foreign law, said that Scalia's comments were "like being told your favorite baseball player disagrees with your approach to hitting."

Scalia's "brilliance," Feeney said, "has not convinced a majority of the court. He needs our help, even if he doesn't want it."

Feeney said that Scalia's remarks may have damaged chances for his resolution's passage, since they will probably be quoted by its opponents.

So Feeney thinks Scalia may have undercut his resolution a tad? Perhaps -- just perhaps -- his opponents will now quote his hero against him? How hilariously embarrassing for Feeney. I was only trying to help.

I never quite understood the reaction against quoting foreign law. I mean, other than xenophobia.

Opinions cite literature and a miriad of sources constantly. If someone has analyized a similar issue why not use it to inform your decision. I always thought of it like a state court quoting a court in another state. Its not binding of course, but analytical reasoning knows no borders.

anon1L said..." I never quite understood the reaction against quoting foreign law. I mean, other than xenophobia."

Well, it isn't xenophobia. I'mgoing to assume that was a flippant comment, otherwise I'd have to assume admission standards are slipping.

If you're really interested in understanding, I just wrote a 28 page commentary on foreign law, and while it isn't available online, I'd be more than happy to email it to you. Alternatively, you could start by reading the transcripts of the Scalia/Breyer colloquy at AU last year and of the Scalia AEI speech this spring, or for a morescholarly approach, you could read Against Foreign Law, 29 Harv. J. of L. & P.P. 291, by Delahunty & Yoo (this paper actually makes many of the points mine did, although I hadn't read it before I wrote mine).

I will spend as much time asI can trying to explain this to people who are honestly open to the possibility that they might be wrong.

A more interesting question is whether congress has the consitutional power to proscribe the the application of foreign law as precedent or authority by SCOTUS? If so ,the rest is just internecine squabbling.

"A more interesting question is whether congress has the consitutional power to proscribe the the application of foreign law as precedent or authority by SCOTUS? If so ,the rest is just internecine squabbling."

In some ways, this is similar to the question of whether Congress can impose cameras on the Court: even if Congress has the formal authority, it is beyond any serious question that it is incompatible with the principle of comity between co-equal branches of government.

I have no idea if they actually have the formal power to do it; the only thing that jumps tomind is perhaps the supremacy clause combined with the necessary and proper clause, but that is very, very tenuous.

This is just smoke and mirrors by Congress, since they lack the nerve to apply what I would argue to be the simplest answer: removal from the bench of the Justices responsiblefor the trend, viz., Stevens, Kennedy, Ginsburg and Breyer.

I love how elitists call people who question allowing the influence of foreign law on the Supreme Court xenophobic. I love that. It's cute, because the elitists have no idea the complexity of what's at issue.

Impeachment would work but it would set a bad precedent. Judges shouldn't be ousted for bad law, as satisfying as that may be. Only for criminal behavior.

The thing to do here is obviously a constitutional amendment: "No federal court shall cite foreign law as precedent or in any othe way when resolving a case before it."

The New York Times would go into a tizzy the likes of which the world has never seen, but it would pass easily.

Seven Machos said..."The thing to do here is obviously a constitutional amendment: "No federal court shall cite foreign law as precedent or in any othe way when resolving a case before it."

No, because that's overly broad. Foreign law IS sometimes relevant, and your proposal would indiscriminately foreclose the possibility of its uses in situations where it is undeniably relevant: in interpreting treaties, see, e.g., Olympic Airways v. Husain, 540 U.S. 644 (2004) (Scalia, dissenting), and in cases where a section of American law depends upon a foreign jurisdiction, see, e.g., JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88 (2002).

This overbreadth problem is another hurdle for those who would frame a legislative response. You have to come up with language that is broad enough to be meaningful ("no more money for old Roper" won't do it) but narrow enough that it wouldn't do grave harm when the court considers international agreements.

And the reason that, for example, a ruling of the European Court of Human Rights as to whether the European Convention on Human Rights prohibits governments from banning sodomy is "useful" to understanding what the Fourteenth Amendment to the United States Constitution -- ratified nearly a century previously -- is...What?

I mean, what is it you're expecting to find in those tea leaves? How do supporters answer the charge that foreign law is just legislative history on steroids - nothing more than an infinitely-malleable tool deployed to lend a specious patina of legitimacy to reading one's own policy preferences into the Constitution?

It seems to me that it isn't even the case that proponents have failed to answer Scalia's criticisms in the AU debate; they have done precisely what Breyer did in that debate: thrashed around desparately for any kind of broad generality that might support their position, and in the end, convinced no one. So far as I have read, the only transnationalist who has even started to grapple honestly with questions of legitimacy - and from the standpoint that perhaps we scepticsmight actually have a point - is Melissa Waters. That's commendable; where are the other foreign law proponents willing to debate honestly and in good faith on this subject?

I disagree with you so entirely on this issue that it is hard to know where to begin in rebutting specific poiints in the NY Times, Ann. Perhaps the most obvious points:

"And if he reads it and finds it helpful, what's wrong with citing it?"

What's wrong with it depends wholly on what it is supposedly helpful for. What is it helpful for?

"For [Roper], [Kennedy] endured calls for his impeachment. What is so alarming about American judges' reading and citing foreign law?"

As well he might. In Roper, Justice Kennedy committed an even more egregious violation than did Justice Ginsburg in Grutter: in Grutter, Ginsburg attempted to import a traty that was unratified by the Senate; in Roper, Justice Kennedy ignored the fact that the Senate has specifically rejected on part of a traty it ratified. In both cases, unratified treaties were cited in opinions on American law, leaving a visibly exasperated Scalia to wonder when the Supreme Court gained that power. The supremacy clause makes the Constitution, the laws of the United States and the treaties ratified by the United States into the law of the land; all of those are under the control of the people through the democratic organs of government. How do you possibly justify the inappropriate insertion of the Supreme Court into that picture?

Simon: sometimes judges have to make decisions in ambiguous constituitonal terrain, or terrain that seems specifically committed to their discretion.

The fourth amendment is a perfect example; the eighth also seems to involve a lot of judicial discretion (what exactly makes a practice "cruel?"

In many situations, there may be no identifiable original understanding you can defer to, but the textual mandate remains -- you have to determine whehter a practice is reasonable, etc.

In that case, isn't widespread foreign recognition (or condemnation) among the relevant evidence a judge can look to in determining the very open-ended question of whether a practice is "reasonable" or not?

If not, why not, and please provide a list of acceptable sources for making such a determination. I'd agree absolutely that foreign sources should never change an explicit constitutional meaning (no presidents under 35, no federal jurisdiction over non-diverse state claims, etc.), but why shouldn't those sources be relevant when text and understanding run out?

"In that case, isn't widespread foreign recognition (or condemnation) among the relevant evidence a judge can look to in determining the very open-ended question of whether a practice is "reasonable" or not?"

No, it isn't. Faced with a provision such as the cruel and unusual punishment clause, there are varous strategies you can use. You can take Scalia's preferred purist route: "cruel and unusual" means what it meant in 1791, period. (That approach, I admit, is flawed). You could look to American precedent. Or you can take the Trop approach and ask whether society's present conception of cruel and unusual forecloses this as a punishment. But in either instance, you're looking for some criterion that is rooted in American society. But what is not relevant is what societies in OTHER countries think is cruel and unusual; a sovereign nation, by definition, is entitled to govern itself, and it was precisely that premise that inspired the colonies to break free of Britain.

But let's suppose that you have before you a fourth amendment case, Pennsylvania v. Teller. And let's say you're desperate to rule for Teller, because like Senator Durbin, you think the little guy should always win (even when wrong). What you need is a Houdini-like escape trick: something that cuts your way, but sounds authoritative. Well, by sheer coincidence, the Constitutional Court of Pengo-Pengo Land just ruled in a similar case, and that case ruled for the little guy. By jove, if that case carried weight in America, you could rule for Teller!

The only problem is that the Constitutional Court of Pengo-Pengo Land was not interpreting the Fourth Amendment; it was interpreting a provision that sounds similar enough (when translated into English, that is). Moreover, Pengo-Pengo Land is aformer French colonial property, which means that it shares no cultural commonalities with the United States, and their legal system is build on fundamentally different assumptions, history, culture, values and laws. In fact, the more you look at the Pengo-Pengo Land case, the more readily apparent it becomes that the only things that are similar to Pennsylvania v. Teller is that there was a search without a warrant. But these facts exist in a legal context which an American judge is going to be completely ignorant of, and context is everything (a fortiori in an area of jurisprudence where the touchstone is reasonableness - the reasonableness of a search can vary throughout the United States, never mind throughout the world; why on Earth would you assume that what is reasonable to a Russian MP in Chechnya is reasonable to a cop in Savannah, GA?).

The canard that is always offered is that "it's not authoritative, it's persuasive." Flatly untrue, but suppose we take that at face value. It's just "persuasive." Persuasive of what?

The canard that is always offered is that "it's not authoritative, it's persuasive." Flatly untrue, but suppose we take that at face value. It's just "persuasive." Persuasive of what?

It is persuasive because its primary function is evidentiary.

Foreign enactments may, for instance, provide evidence of what is or is not reasonable. The fact that a significant proportion of liberal democracies engage in a practice seems perfectly good evidence tending to support that such a practice is within a range of reasonableness. Certainly not dispositive evidence -- I could imagine extraneous factors that would cast doubt on the persuasiveness of even a universal foreign enactment.

Count me unconvinced, Simon. Your argument seems to depend rather heavily on the proposition that most constitutional questions have determinate answers. I think that many do, but many do not. Your Pengo-Pengo land example seems to flow critically from the assumption that all a court needs to do is properly "interpret" the Fourth Amendment, and the game is over. The problem is, the interpretation game ends pretty quickly when the constituiton commands a reasonableness standard.

Marghlar:"It is persuasive because its primary function is evidentiary."

But evidence of what? Suppose I accept, arguendo, that a court decision in South Africa is, in fact, evidence of societal consensus in South Africa (that is, as opposed to merely being evidence of what a Judge in South Africa thinks, although why in the world we would assume that is beyond me; I shudder to think that somewhere in the world, some more Judge is writing an opinion that suggests that Kelo or Roe represent the consensus in American society). So what? That's nice to know. Can we get back to talking about American law now? I mean, what possible relevance does it have? Having established that the South Africans think X, what bearing does that have on American law?

"The fact that a significant proportion of liberal democracies engage in a practice seems perfectly good evidence tending to support that such a practice is within a range of reasonableness."

I don't think it does. Whether or not a practise is reasonable depends upon cultural and legal context, as well as the prevailing legal regime, and these vary wildly from nation to nation. Even if you are right, though, then the question of whether or not to conform our nations laws and practises to the apparent transnational best practise standards (in some areas, mind you - the Court loves to cite foreign law when that law arguably cuts in its favor, and they have nothing else to turn to, but is happy to be silent about it when that law cuts distinctly against it) is one for the various legislatures, not the Courts.

And in any event: define "liberal democracy." which countries count? Does Portugal? Great Britain? Is Russia? Even countries that seem prima facie to be "liberal democracies" have distinctive features which make you wonder. So for example, when you have a case involving a Terry stop, and if there's a similar case in Russia, what makes you think that Russia (of all places) has adopted a Terry-like rule? When a court in Iran writes an opinion allowing certain evidence that would be hearsay in an American court, even if that result favors you, do you know what the history of hearsay rules is in Iran? Whenever you cite a foreign judgement, you cite something which is utterly untethered to American jurisprudence or to the American polity.

Moreover, my Pengo-Pengo land example actually flows critically from the assumption that reasonable is not a platonic standard, but is not merely sensitive to, but conditional on context. Consider Ornelas v. United States, 517 U.S. 690 (1996), wherein the Chief Justice observed:"A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee." If what would be considered "reasonable" in one city in one state in one season would not be considered reasonable in another city in another state in another season, why would what is considered reasonable in a different city in a different country in a different legal system in a different culture be relevant?

As is often the case with proponents of comparative materials, you elide the crux of the matter: when you say "Foreign enactments may, for instance, provide evidence of what is or is not reasonable," that makes no sense: within its own parameters, it might provide evidence of what is considered reasonable somewhere in the world, but how do you make the jump from the assumption that what is reasonable for a cop in rural Australia is also reasonable for a New York City cop? And even assuming their relevance (which is a BIG, and entirely unproven assumption), why would such materials trump domestic materials, which at least have the relative validition of originating in the same culture?

As I see it, it isn't pursuasive of anything of relevance, and it certainly isn't authoritative. I stand with Justice Story: "foreign judgments are primâ facie evidence of the right and matter, which they purport to decide" (III Commentaries §1301) - and no more.

To bring the tone down just a little bit, it sounds like the people that want to bring in foreign law would answer the old question "If everyone else jumped off a bridge would you?" with either "Sure, all these other countries are doing it" or "I'll have to think about doing it because all of these other countries are doing it."

Of course, when arguing, the people who support bringing foreign law will try something like saying, well bunggie jumping is a fun and safe sport, what do you have against bunggie jumping? Completely missing the point that "Jump off the bridge" means a high/big bridge with no supports or nets [i.e. it will hurt or kill you when you hit the water] and not an extreme sport that can be done safely.

Simon, I think the point is that judges sometimes have to make very policy-esque calls in these cases. What is "reasonable" depends to some degree on context, but it cannot be entirely relative, if the language is to be viewed as constraining. If every other democracy on earth was to decide that a particular practice was beyond the pale, that to me would not decide the case, but it would indicate that there is good reason to be skeptical about the asserted rationale for the practice.

You point out some difficulties associated with this practice -- what is a democracy, what cultures are similar enough to our own that their input is valuable -- but all such things seem to go to the weight of the evidence to me, not to its admissibility.

I certainly wouldn't assert that this is evidence that should predominate over other more domestic factors. But the Court is sometimes called upon to use its judgment, in a policy-centered way, as a check upon the majoritarian branches. When that occurs, I think this is a reasonable data source for the court to look to.

"If every other democracy on earth was to decide that a particular practice was beyond the pale, that to me would not decide the case, but it would indicate that there is good reason to be skeptical about the asserted rationale for the practice."

I don't see why. No other country shares this country's social and legal cultures, even those who one might argue are our closest cousins, Cananda and Britain. What is reasonable is entirely tethered to context, and if not to the immediate context of the crime, then to the wider standards of society. It seems to me that the purpose of the Declaration of Independence is that America will march to its own drum, but what transnationalists are advocating, it seems to me, is precisely the opposite: that American practises will be held up to comparison against the very foreign jurisdictions that we have declined to be part of.

None of this, of course, is to say that we are not obligated to follow treaties; if every other country on earth decided that the death penalty was morally wrong, while that in itself would carry no weight against American practise, if they all proposed a treaty abolishing it, and the United States ratified that treaty, then of course courts would have to strike down the death penalty. And this isn't to say that the legislature can't take foreign practise into account, either. It seems to me that the underlying premise of the American experiment is that a sovereign nation has a right to govern itself as it sees fit -- that the people decide, and yes, sometimes they're going to decide wrong, but it is our right as a sovereign nation to make mistakes. Thus, our representatives are free to consider when enacting a law that "every other democracy on earth [h]as [] decide[d] that a particular practice [i]s beyond the pale," and I would even argue that they should consider that. But having considered it, it is our prerogative as a nation to accept or reject that transnational standard.

Simon: My response would be that the American Sovereign is tripartite, and that the judiciary is an inseparable part of it. We are not a pure democracy, but a constitutional democracy. So the judiciary has a legitimate role to play in enforcing constitutional norms.

Sometimes, that involves judgment (when the standards are so broad that they essentially amount to a delegation of authority to the judiciary, or within the range of ambiguity of any provision). In such cases, I think it is just as proper for a Court to consider foreign materials, as it would be for a legislature to do so when sitting down to draft a law that is within its power.

Note that I have repeatedly said that I think such evidence is of little utility for the most part -- I think only a very strong consensus has almost anything to tell us. But I think it is still relevant, just minimally relevant. I have no problem with the Court citing a source of small but extant relevancy, as long as it isn't made to carry more water than it deserves to.

Thanks for sending me your piece -- I haven't had time to read it closely, but I'll do so later and get back to you. I still find your claim that citation to foreign authority is beyond the power of the federal judiciary to be unpersuasive. Such a result seems to flow from neither the text nor structure of the constitution, which imposes no constraints on how the judiciary ought to give meaning to constitutional provisions.

I don't disagree that the Court has limited powers, but I think that interpreting the Constitution is within its power, and I think that sometimes interpretation requires courts to make a policy choice. When that is the case, I see no constitutional constraints on how they ought to make the choice. I think there are a number of good policy reasons that might constrain their decision making, but that's an issue for another day.